December 09, 2015

Miller on Status in Fiduciary Law

Paul B. Miller (McGill University Faculty of Law) has posted The Idea of Status in Fiduciary Law (Forthcoming in: Paul B. Miller & Andrew S. Gold, eds., Contract, Status, and Fiduciary Law (Oxford: Oxford University Press, 2016)) on SSRN. Here is the abstract:

Much of fiduciary law is built upon status-based characterization of fiduciary relationships. Thus most fiduciary relationships – indeed, all relationships that we think of as being inherently fiduciary – are so designated as a type or kind of relationship to which fiduciary status attaches (e.g., director-corporation, trustee-beneficiary, agent-principal, and lawyer-client relationships). Notwithstanding the prevalence of status-based reasoning in fiduciary law, the idea of status in fiduciary law – and in the law more generally – is poorly understood. This chapter provides a novel account of fiduciary status. The chapter explains conceptual properties that fiduciary status enjoys in common with social, moral and (other) legal statuses. It also explains the distinctive semantic and functional significance of fiduciary status. The chapter provides a conditional justification for the reliance on status-based reasoning in fiduciary law, but it also emphasizes the limits of fiduciary status and indicates the conceptual and normative implications of recognition of these limits.